Citation Nr: 1307041
Decision Date: 03/01/13 Archive Date: 03/11/13
DOCKET NO. 10-36 873 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia
THE ISSUES
1. Entitlement to service connection for a skin disability of the face and back, to include skin lesions and melanoma/carcinoma, to include as due to herbicide exposure.
2. Entitlement to service connection for hypertension, to include as due to herbicide exposure and/or as secondary to a service-connected chronic psychiatric disorder to include posttraumatic stress disorder.
3. Entitlement to service connection for a respiratory disability, to include spots on the lungs, to include as due to herbicide exposure.
4. Entitlement to service connection for bladder cancer, to include as due to herbicide exposure.
5. Entitlement to an initial disability rating in excess of 50 percent for a chronic psychiatric disorder to include posttraumatic stress disorder.
6. Entitlement to a total disability evaluation based on individual unemployability.
REPRESENTATION
Veteran represented by: John C. Blair, Esq.
ATTORNEY FOR THE BOARD
M. Moore, Associate Counsel
INTRODUCTION
The Veteran served on active duty from September 1965 to September 1967 with service in the Republic of Vietnam from May 1967 to September 1967.
These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which granted service connection for a chronic psychiatric disorder to include posttraumatic stress disorder (PTSD), assigning a 30 percent evaluation effective October 29, 2007; and denied service connection for bladder cancer, hypertension, skin lesions (face and back) including melanoma and carcinoma, and a lung condition including spots on the lungs. In October 2009, the Veteran submitted a notice of disagreement (NOD) and subsequently perfected his appeal in August 2010.
In June 2010, the RO increased the Veteran's disability rating for a chronic psychiatric disorder to include PTSD to 50 percent, effective October 29, 2007. Because the RO did not assign the maximum disability rating possible, the appeal for a higher evaluation remains before the Board. See AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed an NOD as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal).
The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action on his part is required.
REMAND
VA and private treatment records show that the Veteran has been diagnosed with and treated for a history of melanoma, basal cell carcinoma, seborrheic keratosis, verruca vulgaris of the upper lip, hypertension, an infiltrate of the right upper lobe of the lung posteriorly, and papillary urothelial carcinoma.
The Veteran claims that his skin disability, hypertension, respiratory disability, and bladder cancer are related to in-service herbicide exposure. See claims, October 2007, June 2008; internet research submitted by Veteran in September 2008. He alternately argues that his hypertension is caused by stress from service. This assertion raises a claim of service connection for hypertension as secondary to his service-connected psychiatric disorder. Additionally, his September 1967 separation examination shows a blood pressure reading of 140/90, which he argues is consistent with hypertension or pre-hypertension. The Veteran also the criteria for a higher rating for his PTSD have been met.
In statements dated in July 2011 and September 2012, the Veteran's attorney provided a detailed argument as to why the Veteran should be assigned a rating of at least 70 percent and a total disability evaluation based on individual unemployability. He indicated that the Veteran received ongoing treatment for his PTSD. He cited to various group and individual treatment notes dated from October 2010 through June 2011. He also alludes to continued treatment for the other claimed disabilities. However, the claims file only includes VA treatment records dated up to January 2010. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The AMC should obtain and associate with the claims file all outstanding VA records.
Next, in light of the evidence showing (1) hypertension; (2) the Veteran's service-connected psychiatric disorder and in-service blood pressure values; and (3) the Veteran's contention that his hypertension had either its onset in service or is the result of his service-connected psychiatric disorder, the Board finds that an examination and medical nexus opinion are necessary in order to properly resolve the claims of entitlement to service connection for hypertension. See 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2012); see also McLendon, supra.
Further, as noted, the Veteran present evidence that suggests a worsening of his psychiatric disorder. For example, the May 2012 private assessment assigns the Veteran a Global Assessment of Functioning (GAF) score of 35-40. The November 2010 assessment assigns a GAF score of 45-50. His statement noted that his symptoms had worsened over the previous two to three years, he suffers from nightmares at least two times per week, and he has engaged in acts of road rage. By comparison, the May 2010 VA examiner assigned a GAF score of 61 and noted that the Veteran denied physically aggressive behavior and only reported nightmares once every three to four weeks. In light of the Veteran's reported symptoms and lower GAF scores, the most recent VA examination may not reflect the current state of the Veteran's psychiatric disorder. The Board finds it is appropriate to afford the Veteran a new VA examination to evaluate the current severity of his chronic psychiatric disorder. See Green v. Derwinski, 1 Vet. App. 121 (1991); Schafrath v. Derwinski, 1 Vet. App. 589 (1991).
Finally, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a total rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. Here, as noted, the Veteran's attorney argues that the criteria to support an increased rating and a TDIU have been met. The Board finds that the issue of TDIU has been reasonably raised by the record and is, thus, properly before the Board by virtue of his increased-rating claim pursuant to Rice.
Further, given the evidence of record demonstrating that the Veteran may be unemployable as a result of his service-connected disability, the Board has little choice but to Remand this matter to afford the Veteran a VA examination. Moreover, the Board notes that the Veteran has not received notice pursuant to the VCAA as it pertains to his claim for TDIU.
Accordingly, the case is REMANDED for the following actions:
1. Provide the Veteran with notice in compliance with the VCAA that notifies him of what evidence he must show to support a claim for TDIU.
2. The AMC/AOJ should contact the Veteran and his attorney and obtain the names, addresses and approximate dates of treatment for all medical care providers, VA and non-VA, that treated the Veteran for his skin disability, hypertension, respiratory disability, and bladder cancer since service discharge and his psychiatric disorder (PTSD) since June 2008. Regardless as to whether they respond, obtain all VA clinical records from July 2008 to January 2009 and from January 2010 to the present.
All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran and his attorney must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R.
§ 3.159(c)(2),(e).
3. The Veteran must be scheduled for a VA examination(s) with an appropriate examiner(s) to determine the nature and etiology of his currently diagnosed hypertension. The examiner(s) must review pertinent documents in the Veteran's claims file in conjunction with the examination. That such a review took place must be noted in the examination report.
The examiner must provide an opinion as to whether it is at least likely as not (a 50 percent probability or greater) that the Veteran's hypertension had its onset in service or within one year of service discharge or is otherwise shown to be etiologically related to his military service, including his presumed exposure to herbicide agents in the Republic of Vietnam. The examiner should specifically address the clinical significant, if any, of the blood pressure reading of 140/90 on the Veteran's separation examination report.
The examiner also render an opinion as to whether it is at least likely as not that the Veteran's hypertension was caused or aggravated (permanently increased in severity beyond the natural progression of the disorder) by his service-connected psychiatric disorder.
The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it.
Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s).
4. The Veteran should be scheduled for a VA examination in order to determine the current nature and severity of his chronic psychiatric disorder to include PTSD. The claims folder must be made available to the examiner for review in connection with the examination. The examination report must reflect that such a review was conducted. The examiner should specifically address the November 2010 and May 2012 private psychiatric evaluations. All indicated studies should be completed. A complete rationale must be provided for any opinion provided.
The psychiatric examiner should identify what symptoms, if any, the Veteran currently manifests or has manifested in the recent past that are attributable to his service-connected PTSD. The examiner is also requested, if possible, to determine and specifically list all symptoms as well as the levels of social and occupational impairment experienced by the Veteran that are attributable to his PTSD. The examiner should assign a Global Assessment of Functioning (GAF) score for the Veteran's disorder consistent with the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) and explain the significance of the score. The medical opinion must also address whether his service-connected PTSD alone is so disabling as to render him unemployable.
Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s).
5. After completing the above actions and any other development that may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims should be readjudicated. If any of the claims remains denied, a supplemental statement of the case should be provided to the Veteran and his attorney. After they have had an adequate opportunity to respond, the case should be returned to the Board for further appellate review.
The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999).
No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims. His cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the rating of the claim on the evidence of record if it is an original claim or denial if it is a claim to reopen or for increase. See 38 C.F.R. § 3.655 (2012).
These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2012).
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MICHAEL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. See 38 C.F.R. § 20.1100(b) (2012).